Category Archives: Legal

Jury trial right in danger

HOW TO PROTECT YOURSELF FROM GOVERNMENT ASSAULT ON LAWSUITS AND DAMAGES

Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves, by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury.  Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The founders feared unaccountable power in the form of the King of England against his “subjects.” 21st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

  • Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers, to $250,000.00, regardless of how much that injury devastated your life or the extent of malfeasance by the medical professional or company.
  • Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe
  • Eliminate individual state laws regarding lawsuits and forcing all cases to Federal Court
  • Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. PETERSON | Law has been protecting Massachusetts residents by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

Your right to justice is at risk

This is from my American Association for Justice about legislation in Congress that seeks to prevent injured individuals from getting properly compensated, in order to purportedly help the doctors and the corporations.

However, the data from states like Texas, that limited the rights of individuals to be compensated more than fifteen years ago in hopes of saving costs, is clear that taking away an individuals’ right to get proper compensation for their injuries does not save much, if any, money on doctor’s malpractice or others’ insurance policies.

Insurance is the mechanism by which our society has opted to spread the cost of individual’s injuries over the society in general.  Taking away people’s right to sue and be compensated merely makes that injured person bear the cost effects of the injury done by some third party, without any substantial savings to the Defendant. –

AAJ-20170306-protect the right

This week, Congress will vote on legislation that will rig the system against individuals like you and tip the scales of justice in favor of powerful corporate defendants. We need to send a strong message to Congress that these anti-civil justice bills must fail.  Take Action

If you agree that it is unacceptable for Congress to eliminate your rights to hold corporations accountable, we urge you to contact your elected officials today. Tell your representatives to stand up for you and your family and vote NO on offensive anti-civil justice legislation.

Please take action today! Your elected officials need to hear from you that you want to preserve your rights to access the civil justice system.  Take Action

Your right to sue if you are injured is under attack

Congress Moves To Punish Anyone Using The ACA And Medicare

House Republicans are hoping to dismantle the Affordable Care Act by punishing those who benefit from it.

02/26/2017 05:44 pm ET | Updated 1 day ago

Anadolu Agency via Getty Images

Those who think Congress is weakening its anti-Obamacare, anti-Medicare resolve aren’t paying attention. Instead of beginning with repeal and replace bills, however, Congress has shifted focus to punishing anyone who benefits from these laws. And it’s happening right now.

On February 28, 2017, the U.S. House Judiciary Committee will markup and vote on a rushed piece of legislation, H.R. 1215, covering anyone who receives health care through a “federal program, subsidy, or tax benefit.” At a minimum, that means the Affordable Care Act, veteran and servicemember health plans, Medicare and Medicaid (i.e., the elderly, poor and disabled). Beyond this, the full scope is unclear because the bill has not been examined in a single legislative hearing.

According to H.R. 1215, punishment would begin if you (or your child or loved one) were harmed by an unsafe hospital or nursing home, in some cases injured by an unsafe drug or medical device, or even sexually abused by a doctor. If you tried to seek compensation or accountability in court, you would be forced into an inferior and cruel system of justice created just for you by lobbyists and career politicians in Washington DC.

This bill, H.R. 1215, the so-called “Protecting Access to Care Act of 2017” (more like the Protecting Access to Unsafe Care Act of 2017) is the brainchild of congressional Republicans who say they want government out of health care. Ironically, this bill is nothing if not federal mandates, including eliminating civil justice rights guaranteed by state governments. These mandates include taking power away from local juries to decide individual cases, and consolidating that power in the hands of DC politicians.

Among H.R. 1215’s many harsh provisions is a federal mandate on the value of a life. This appears in the form of an across-the-board $250,000 “cap” on compensation for “non-economic” injuries (like paralysis, trauma, reproductive harm), which would be mandated in states even where such caps are unconstitutional. That same cap would apply whether a parent lost a child, a senior citizen were harmed in a nursing home, or a family breadwinner were permanently disabled due to reckless medical care.

Other provisions include:

· A federally-mandated statute of limitations ― the time limit for someone to file a meritorious lawsuit ― which is more restrictive than a majority of state laws.

· Federal repeal of state collateral source rules, meaning a wrongdoer can reduce their obligation to compensate a patient by the amount of disability, workers compensation or other insurance received, to which a patient has a right.

· Federal repeal of state joint and several liability laws, meaning that the injured patient ― not other fully-responsible wrongdoers ― would have to cover the cost of an injury if one of the fully-responsible wrongdoers cannot pay.

· A federally-mandated prohibition against a severely-injured patient receiving a full jury award in a lump sum, leaving the patient undercompensated while the insurance company gets to sit on the money and pocket the interest.

· Federal interference with an individual’s right to contract with their own attorney on fees (while the insurance company or hospital that committed malpractice has no such restriction).

· A federally-mandated ban on including a hospital, nursing home or health care provider in a case against a drug company over an unsafe drug, even if the provider negligently prescribed or administered the drug and is jointly responsible for causing injury or death.

Medical errors are the third-leading cause of death in America, behind heart disease and cancer. Enact this bill, and watch “medical errors” rise to number one or two.

If you need any evidence, take a look at what’s happening in Texas, which has some (but not all) of these laws already. Texas attracts neurosurgeons like Christopher Duntsch, who was just sentenced by a jury to spend the rest of his life in prison:

For weeks, jurors heard the accounts of patients who had been maimed or paralyzed in horrifically bungled surgeries. Kellie Martin and Floella Brown died… “So why didn’t he stop?” … “Because of greed. Because he owed people a lot of money. He wanted to live the high life and a neurosurgeon makes big bucks. Why didn’t he stop? Because he had no conscience. He doesn’t care what he has left in his wake.”

But there’s another reason why he didn’t stop: a Texas law that severely caps damages, just like H.R. 1215 would do. As attorney Chris Hamilton explained, without this law, “Duntsch would not have been allowed to keep operating on patients. It is almost certain there would have been a significant liability lawsuit against one of the hospitals for an early patient… I cannot imagine a circumstance where the hospitals would not have kicked out a doctor like this much sooner.’”

Yet this isn’t the only case of a butcher brain surgeon in Texas. A few years ago, there was another guy, Dr. Stefan Konasiewicz. After being disciplined in Minnesota, Konasiewicz made a bee-line for Texas where he continued to harm patients as he operated on their brains.

But we don’t even need horrendous anecdotes like this to prove the point. Researchers studying patient safety in states with “caps” (like Texas) found “consistent evidence that patient safety generally falls” after caps are enacted. That’s because medical malpractice liability gives providers an incentive to be careful.

H.R. 1215 is the sixth anti-civil justice bill in less than two months coming out of the U.S. House Judiciary Committee, not a single one of which has had a hearing. As lobbyists and politicians scheme to strip Americans of their legal rights, they are hoping no one notices. If they succeed on any of these bills, it will be open season on American families and small businesses that are harmed by super-rich industries or reckless health care.

As I’ve said before, “woke America, these ‘under the radar”’ issues need your attention. Time to add them to the long list of things that need ‘resisting.’”

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PETERSON | Law

Osler “Pete” Peterson

617-969-1500 – Newton

February 2017

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Troubling News On Traffic Safety

Injuries and deaths from vehicle crashes have always been a major problem on U.S. roadways. But as a nation, we have made steady progress over the past four decades, thanks to education and many safety innovations. Then came reports in 2015 and now 2016 that this trend has been reversed.

So far, safety experts are still scrambling to pinpoint just exactly what is causing the upswing. But as we discuss in this must-read issue of “You Should Know,” those of us who work to protect the rights of people injured in vehicle crashes know the common culprits all too well.

Experts Looking for Answers to Rising Traffic Injuries, Deaths

Pedestrian AccidentAccidents involving pedestrians and bicyclists are also on the rise.

Cheaper Gas, Better Economy, Distracted Driving Among Contributing Factors

For decades, auto accidents have trended downward. Road fatalities steadily declined from more than 50,000 annually in the early 70s to just over 30,000 in recent years. Credit goes to many advances in safety, including:
  • Crashworthy vehicles that better protect those involved in a crash
  • New technologies like anti-lock braking, vehicle stability controls and self-driving sensors that prevent accidents in the first place
  • Education programs and tougher laws aimed at seatbelt use, teen drivers and driving while impaired.

But starting in 2015, road safety hit the skids when the number of people lost in crashes jumped 7.2 percent from 2014, the largest percentage increase in 50 years. And the news for 2016 may even be worse as the National Highway Traffic Safety Administration (NHTSA) recently projected an 8 percent increase in traffic deaths for the first nine months of 2016 over 2015.

Some safety experts have blamed the increase on more drivers traveling more miles. Longer commutes and more road trips, coupled with cheaper gas and lower unemployment, adds up to more drivers on the road. Even those not in a vehicle are at a higher risk as car-pedestrian and bike fatalities have risen as well.

But NHTSA’s Administrator Mark Rosekind said he and his colleagues can’t accept that a better economy means more people are going to die on our roads. “We still have to figure out what is underlying those lives lost,” he said. To that end, NHTSA and the National Safety Council joined forces to launch the Road To Zero campaign in October, which aims to end all traffic fatalities in the U.S. in the next 30 years. This campaign provides grants to non-profits that help research and implement innovative highway safety measures.

Car Crash? There’s an App For That

The spike in traffic fatalities and accidents is often blamed on the use of smartphones. According to the latest data from the Pew Research Center, almost 80 percent of U.S. adults own smartphones. More than 600,000 of those people are operating a smartphone while driving at any given time.

Texting and driving have proven to be a dangerous combination, with 78 percent of distracted driving-related crashes attributed to a texting driver. However, dangers from non-texting apps that encourage driver interaction have also arisen.

The messaging app Snapchat features a speed filter that tells users how fast they are traveling, which some have argued encourages drivers to travel at unsafe speeds. A man who suffered a traumatic brain injury during a recent collision is suing both the other driver for her recklessness as well as Snapchat for encouraging the teen to drive at unsafe speeds. Waze, a navigation app, rewards users for reporting traffic jams and roadside obstructions while driving. The “Gotta Catch ’Em All” mentality of Pokémon Go has caused accidents when users ignored safety to play the game.

Protect Yourself and Others

Traditionally the six root causes of serious accidents are driver inattention, fatigue, impaired driving, speeding, aggressive driving and adverse weather conditions. With those factors in mind, here are some tips you can use to prevent traffic accidents and protect yourself and others:

  • Silence and put away all phones for the duration of your drive.
  • Keep your eyes on the road and leave the distractions at home.
  • When buying a new or used car, prioritize safety ratings and purchase cars with safety features. Also be sure to run a recall check on your car at SaferCar.gov.
  • If you are a pedestrian or bicyclist, pay attention to vehicle traffic even if you have the right of way. A distracted driver could mean disaster.
  • Follow all posted speed limits and wear your seat belt.
  • Always drive alert, awake and sober.
You Should Know is a copyrighted publication of Voice2News, LLC, and is made possible by the attorney shown above. This newsletter is intended for the interest of past and present clients and other friends of this lawyer. It is not intended as a substitute for specific legal advice. If you no longer wish to receive these emails, click here to unsubscribe from this newsletter, and your request will be honored immediately. You may also submit your request in writing to: Steven L. Miller, Editor, 4907 Woodland Ave., Des Moines, IA 50312. Be sure to include your email address.

Apple’s patented tech could safeguard phones from distracted driving

From my American Association for Justice daily news feed –

Family blames Apple’s FaceTime for fatal wreck.

AP (1/2) reports that the family of Moriah Modisette, a 5-year-old girl killed near Dallas in a Christmas Eve 2014 crash with a vehicle operated by a driver who was purportedly using Apple’s FaceTime video chat app while driving at 65 mph, had filed suit against the tech giant. The complaint, filed in Santa Clara Superior Court and obtained by KTLA, alleges that police found FaceTime running on the driver’s iPhone and that Apple knew the risks associated with using FaceTime while driving, but it nonetheless failed to implement iPhone technology that would have automatically disabled FaceTime when used in a vehicle moving at highway speeds – technology which Apple had itself patented in 2008.

The Washington Post (1/2, Wootson, 11.43M) reports that the driver, Garrett Wilhelm, was following the Modisette family’s Camry, and police believe that Wilhelm, due to his use of FaceTime, never saw the Modisettes’ brake lights when their car stopped, and his SUV “slammed into the Camry at full highway speed.” The Post adds that Wilhelm’s iPhone survived the collision and when police found the device, FaceTime was still running. While Wilhelm faces criminal manslaughter charges, the Modisette family believes Apple is also at fault, because iPhones should detect whether the user is operating a moving vehicle and disable the FaceTime app preloaded on iPhones. The Post notes that the Modisette case represents “yet another example of drivers’ crashing while distracted by apps on their smartphones..”

Business Insider (12/30, Price, 3.42M) quotes the central allegations of the Modisettes’ complaint, which avers that Apple’s “failure to design, manufacture, and sell the iPhone 6 Plus with the patented, safer, alternative design technology already available to it … and failure to warn users that the product was likely to be dangerous when used or misused in a reasonably foreseeable manner … rendered the Apple iPhone 6 defective when it left defendant APPLE INC.’s possession, and were therefore a substantial factor in causing plaintiffs’ injuries and the decedent’s death.”

BOTS Act

Who says Congress can’t get anything done – this both fills someone’s real need, plus has a good acronym.  This is from my Thompson-Reuters newsletter.


Congress Restricts Ticket-Buying “Bots”

December 19, 2016

Money, keyboard and hand on computer mouseThe United States Congress recently passed the “Better Online Ticket Sales Act” (BOTS Act).  The new law, which President Obama is expected to sign, makes it illegal to use automated software (“bots”) to circumvent security systems that are designed to restrict purchases of tickets to public events, such as concerts and athletic events.

Currently, a variety of companies that sell event tickets use bots to make mass ticket purchases immediately after event tickets go on sale to the public.  In some instances, the bots are designed to circumvent computer systems that are intended to limit the number of tickets that can be purchased by a single buyer.

These mass purchases sometimes result in extremely rapid ticket sell-outs, frustrating individual ticket buyers.  Often, the tickets purchased using bots are re-sold to the public.  The re-sale price for the tickets is generally higher than face value.  This process thus generally results in greater costs to consumers.

The BOTS Act makes it illegal to bypass computer security measures in order to make mass purchases of tickets for events with a capacity of more than 200 attendees.  Under the terms of the Act, bypassing the computer security measures is characterized as an “unfair or deceptive act” and is thus within the regulatory jurisdiction of the Federal Trade Commission.

The goals of the BOTS Act are sensible and useful.  It is uncertain, however, that specific federal legislation was necessary in order to accomplish the objective of limiting computer security circumvention.  It seems that existing federal laws, such as the Computer Fraud and Abuse Act, provide adequate authority to support legal action against parties who engage in circumvention of computer systems that are engaged in interstate commerce.

One noteworthy apparent consequence of the BOTS Act is the formal expansion of the FTC’s role in regulation of online transactions and activities.  The BOTS Act characterizes efforts to circumvent computer security systems as illegal commercial trade practices.  This appears to grant to the FTC the lead role in regulating U.S. computer security.

With the implementation of the BOTS Act, it seems that the FTC has joined law enforcement authorities at the leading edge of computer security enforcement in the United States.  That role will likely require significant resources for the FTC.  In order to execute this mission effectively, the FTC must receive substantial additional resources.

MMA on marijuana law problems

MMA-2

MMA letter to governor and legislative leaders calls for changes to recreational marijuana law

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His Excellency Charles D. Baker
Governor of the Commonwealth
State House, Boston

The Hon. Robert A. DeLeo
Speaker of the House
State House, Boston

The Hon. Stanley C. Rosenberg
Senate President
State House, Boston

Dear Governor Baker, Speaker DeLeo, and President Rosenberg,

With the passage of Question 4, Massachusetts became one of just eight states that have legalized the recreational use of marijuana. Because of our population and our prime location in the center of a compact geographic region, our state will soon become the commercial marijuana industry’s East Coast base. The growing industry will certainly use Massachusetts as the retail platform for Rhode Island, Connecticut, New York, Vermont and New Hampshire.

Cities and towns have a responsibility to ensure that the new law is implemented locally in a manner that protects the public interest, including addressing public health and public safety concerns, and ensuring that the roll-out does not negatively impact residents, other businesses, neighborhoods, economic development plans, or other important considerations. As such, municipal officials are scrambling to get information and plan their own policy responses. This will be very difficult in the short term, as there are many unanswered questions and many significant flaws in the new law.

It is important to recognize that Question 4 prevailed and the issue of whether to legalize the recreational use of marijuana has been settled. Yet it is also clear that the new law has several significant drafting flaws that require fixing in order to prevent negative outcomes. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we believe it is both appropriate and necessary for state lawmakers to take action to address the shortcomings in Question 4. Doing so would benefit the public interest and every community.

While there are many smaller details that warrant attention, the major problems that must be fixed are: 1) deadlines that are too short to give state and local officials enough time to prepare for and administer the law; 2) the preemption and loss of local control; 3) the unregulated “home grow” provisions that could foster a new black market for marijuana sales; and 4) the inadequate tax revenues written into the statute.

An Unrealistic Timeline
Question 4 sets an unrealistic deadline, instructing the state to construct the entire regulatory framework for the commercial marijuana industry by January 1, 2018. That is too little time to recruit and appoint a first-ever, three-person Cannabis Control Commission (CCC) and give the rookie commissioners the time to build a brand-new state agency, recruit and hire agency staff, draft initial versions of all regulations, solicit input from all stakeholders, promulgate final regulations, and provide enough lead-time for a rational roll-out that protects the public interest. If the state fails to meet the January 1 deadline, the industry has written Question 4 in such a way that the commercial industry would arise in a mostly unregulated environment, because medical marijuana operators would automatically be licensed as commercial agents for recreational marijuana, giving them a near-monopoly in the marketplace.

We respectfully ask you to act swiftly to extend these deadlines and give the state and municipalities more time to get the regulatory framework in place and adopt reasonable rules to govern this new commercial industry.

In the meantime, we request passage of statutory authority to allow cities and towns to enact a moratorium on new commercial marijuana facilities until the Cannabis Control Commission has promulgated regulations governing the industry. Because the deadline for regulations comes after the CCC is instructed to begin processing applications and licenses for commercial facilities, local governments will begin to see applications for commercial facilities before they know the full extent of the regulations under which those facilities will be operating.

Unwise Preemption of Local Control
A second major concern is the preemption of local control. The new law prevents cities and towns from making local decisions on whether to allow commercial retail sales in their municipalities. Here it is clear that the marijuana industry lobbyists learned a lesson from Colorado, the first state to legalize recreational use. The Colorado law allows local governing bodies to ban retail sales in their communities – and 70 percent of their cities and towns have enacted such a ban. Question 4 makes it impossible for selectmen, mayors, councils or town meetings to make this decision. Instead, communities are only allowed to enact a ban if 10 percent of local residents who voted in the last state election sign a petition to place a question on the ballot, and voters approve the question at a state general election in 2018 or later. This means the earliest that communities can even consider a ban will be nearly a year after commercial sales become legal – it is hard to imagine that this industry-friendly loophole was unintentional.

Further, Question 4 includes language that would allow the CCC to preempt or disallow any local zoning rule, ordinance or regulation that is inconsistent with their wishes – a concern made even more serious because the “advisory board” in the law is actually a pro-industry panel dominated by commercial marijuana interests.

We respectfully ask you to act swiftly to restore decision-making authority to municipal governing bodies on the question of commercial bans, and clarify that the CCC cannot override local zoning decisions and ordinances on the location and operation of locally permitted commercial facilities, including recreational marijuana. The broad preemption language must be eliminated.

An Unregulated Non-Commercial Market
Starting on December 15, the home cultivation of marijuana will be allowed through a totally unregulated “home grow” provision, which will allow individuals to cultivate up to 12 plants at any one time. Calculating the street value, that’s $60,000 worth of marijuana, and based on reasonable processing estimates, the 12 plants could yield approximately 12,000 joints, or thousands of “servings” of marijuana-infused edibles.

Local and state law enforcement officials are gravely concerned about the home grow language in the new law. The sheer volume of home grown marijuana will certainly incentivize a burgeoning black market that will hit the street at least a year before official, regulated commercial sales become lawful, creating a source of sales that could easily reach school-aged children and teenagers.

We respectfully ask you to delay the home grow provisions, and develop a structure to appropriately regulate and monitor this activity to safeguard public safety and health, and protect neighborhoods, residents and youth.

Inadequate Revenues
Another major concern is the rock-bottom excise revenue that would be generated by Question 4, where it is again clear that the marijuana industry learned a lesson from earlier experiences in Colorado and Washington state. In addition to state sales taxes, the Colorado law imposes a 25 percent tax on marijuana, and cities and towns can enact their own local sales taxes of up to 8 percent. The state of Washington imposes a 37 percent excise tax, and cities and towns can collect their own local sales tax of up to 3.4 percent.

Here in Massachusetts, the commercial interests behind Question 4 set the state marijuana excise tax at just 3.75 percent, and capped the local-option marijuana excise tax at only 2 percent. These would be the lowest rates in the nation.

Given the significant new burden of regulating and monitoring a new commercial industry (which will deal in a controlled substance that is still illegal under federal law), the state and local revenue rates are unreasonably low and damaging to public budgets. The state excise will clearly fall short, and we urge you to increase the state tax so that, at a minimum, resources will be available to provide statewide training of police officers and fund the CCC and other state agency needs. Further, cities and towns will have new responsibilities in areas of public safety, public health, zoning, permitting and licensing. At 2 percent, the local revenue in Question 4 will fall far short of local needs.

We respectfully ask you to increase the allowable state and local tax rates to bring them in line with Colorado and Washington and other “first-wave” legalization states. We recommend that cities and towns be authorized to implement, on a local-option basis, an excise of between 2 to 6 percent, to be determined by vote of the local governing body.

An Independent Advisory Board is Necessary
We urge you to improve the makeup of the Cannabis Advisory Board to make it a truly independent entity, instead of the industry-dominated panel that it is under Question 4. It is striking that the ballot question was written to give commercial marijuana interests control of a board that will be so heavily involved in regulating the industry. We respectfully ask that a municipal representative be added to the board, as well as a representative from municipal police chiefs and a seat representing local boards of health. We believe the addition of these perspectives is vital to ensure that local public safety and health concerns are considered when crafting the regulations.

Summary
Cities and towns have a responsibility to implement the new law in a manner that protects the public interest, yet communities will not be able to fulfill this responsibility unless the significant flaws detailed in this letter are addressed. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we respectfully ask the Commonwealth to take action to address the shortcomings in Question 4. Doing so would benefit the public interest and every community.
Thank you very much for your consideration. If you have any questions or wish to receive additional information, please do not hesitate to have your offices contact me or MMA Legislative Director John Robertson at (617) 426-7272 at any time.

Sincerely,

Geoffrey C. Beckwith
MMA Executive Director & CEO